Deposing the Defendant Physician

The deposition of the defendant physician is the crucial turning point of your medical negligence case. The preparation and effort expended in this deposition determines the defendant's assessment of the case. Even without expert testimony, the plaintiff's case should be made with the defendant's deposition. There is no such thing as "over preparation" for this deposition.

Prior to the deposition, you should obtain all of the discovery requested. At a minimum, the following should be done:

A. All background information on defendant from the DPR - medical schools -licensing bureaus - ECFMG and all other governmental and quasi-governmental organizations should be obtained.

B. The defendant's library is inventoried and a list of all journals, text and medical authoritative sources should be obtained for cross-examination, impeachment and contradiction.

C. An investigation of the defendant, his practices, his office routine, and information from prior employees should be obtained.

D. A list of all complaints filed against the defendant physician for all agencies as well as lawsuits should be obtained. Follow-up by contacting other plaintiffs' counsel and obtaining depositions, answers to interrogatories, and discovery on the defendant doctor.

E. A check of all references for medical school and state licensing applications. if a reference has written a book or article on the point involved in your case, this should be obtained.

F. Each and every detail of the medical chart and medical records should be outlined, highlighted and organized in an impeccable manner. You should always have a working copy with your notes and numbered pages and a copy for the doctor to refer to.

G. Consider videotaping the defendant doctor at his deposition.

H. It is essential that the ground rules be set at the defendant doctor's deposition. Information you have regarding his background should be used as a guide to keep him under control. There should be subtle intimidation. Contrary to some schools of thought, I like to take the doctor's deposition in his office where he is surrounded by books, journals, articles, and all of his records including his billing records.

I. The following information and checklist will be helpful in completing the defendant doctor's deposition. A full day should be requested to complete this deposition with instructions to defense counsel that this matter should not be discussed during breaks and lunch. Be sure you do not take this deposition until all of the information you have requested is in hand and you are confident that you can "nail down" the defendant's version of this case and visibility and qualifications to perform the procedure.

II. Depositions

A. Objectives. The question may be more important than the answers because of the first objective.

1. Get the defendant's position pinned down; i.e. establish the parameters of his conduct. Outline questions that will cover all aspects of his knowledge about the case.

2. Establish the plaintiff's cause of action as much as possible with the defendant's answers. However, it is rare that this will happen with much success.

3. Ideas for achieving both objectives are outlined below.

B. Depositions of all defendants must be taken. Each suit has a defense, and it may be so unique that it cannot be countered at mediation or trial unless discovered in advance.

1. Timing:

a. Take the depositions as soon as possible; i.e. as soon as you are prepared for them. The defendants frequently attempt to shift the burden of liability to someone not sued. If discovery is not done early enough, the statute of limitations may run as to a potential defendant. Also, early depositions allow necessary consultations with your experts.

2. Location of defendant doctor's deposition:

a. Hospital or M.D.'s office. A deposition taken at these places has the advantage of availability of records but the disadvantage of placing a defendant in a location comfortable to him.

b. Courthouse. Where you think the opposing attorney will use disrupting tactics including frivolous objections and instructions not to answer, this may be the most appropriate place. The plaintiff's lawyer may thus anticipate a need for judicial ruling and hold the deposition where a judge is available. If this precaution is not taken, he may find a pertinent and otherwise fruitful line of questioning has been weakened or destroyed by the coaching of defense counsel in the intervening time.

C. Records to be brought to the deposition. Whether the deponent is a party or not, he should be required by subpoena duces tecum or by notice of taking deposition (Fla.R.Civ.P. 1.410(b) for parties) to bring the originals of any records or writings in his possession. Describe the documents generally to avoid elimination of pertinent records by too much specificity.

1. Doctors are required to bring office records, copies of hospital records in their possession, financial records; i.e. itemized statements for professional services, correspondence files and any other writings they may have concerning the care and treatment of the plaintiff.

a. Do not permit the doctor to testify from copies of records produced pursuant to earlier discovery. Instead, insist that he compare the original records with copies furnished to him, identify the copies and testify that they constitute true copies of the only records that were ever made or kept in the office. Otherwise, the doctor may come to a deposition with a record consisting of several filing cards and, at trial, arrive with other material that was not produced earlier because he thought it was not properly part of his office record or because he forgot he had those records.

2. Examining the custodian of hospital records:

a. Carefully compare the original records to copies previously obtained to be sure that the copies are exact duplicates.

b. Check the hospital record for completeness. A missing consultant's report, a sheet of nurse's notes, or a page of doctor's orders may be crucial. Often the nurse's notes contain the most honest statements in the entire medical record.

c. Once assured that the records are complete, have the court reporter mark the pages of the original by a stamp and consecutive numbers to insure against loss between time of deposition and mediation.

D. Tactics for deposing the defendant doctor.

1. Begin by asking the defendant if, prior to the deposition, he reviewed the office and hospital records, whether he discussed the case with his attorney, and whether his recollection of the facts is clear. This forestalls a later claim by him that, at deposition, his recollection of events was faulty.

2. At mediation or trial, the "why" question is dangerous, but on deposition, it is useful to pin the defendant down to specific reasons for using a procedure. The defense lawyer will dwell on these questions at trial, so you might as well learn the defense before trial.

3. Use doctor talk rather than lay terms in your questioning. Since the doctor is accustomed to using that language, he is more inclined to adopt it and the answer is more likely to be the desired one. This works just as well when used with the defendant's experts when they are cross-examined.

4. If the defendant doctor denies the existence of facts claimed by the plaintiff, then usually it is not too difficult to get him to say that if the facts were as claimed by the plaintiff, he would have made a different diagnosis or followed another line of treatment. Then find a nurse, lab technician, or other witness to corroborate the plaintiff's version. The effect upon the defense case is worthwhile.

E. Tactics for deposing the defendant doctor and experts generally.

1. Try to obtain as many affirmative answers as possible with respect to your case. Example: If you have a situation where the plaintiff exhibited classic signs and symptoms of a problem that was misdiagnosed, the questions should be geared to establishing that the symptoms were, in fact, consistent with the problem that was allegedly misdiagnosed.

2. Don't settle for the "unanswered question". Typically, where a specific question is asked by the plaintiff's lawyer, a defendant doctor or his medical expert will give either a short answer which is not responsive to the question, or will engage in a long response which, again, does not contain a full answer to the question. There is a tendency to accept the long answer as having covered the question, but the question should not be left until it is specifically answered, regardless of how long it takes and regardless of how many defense lawyers are complaining that the question was already answered a number of times. Examples of inconclusive or evasive answers are:

a. "We prepared him for surgery." Question: Who is "we"?

b. "We did it the usual way." Question: What is the usual way?

3. The defendant's expert may not have reviewed all of the available medical information. This, it is important to question him with respect to exactly what he has reviewed in reaching the opinion he expresses, what facts he may have been given by defense counsel, and what discussions, if any, he has had with the defendant.

4. Use the defendant's deposition or the depositions of his experts to build upon your knowledge of the medical aspects of the case. This can be done by direct attack; i.e. by asking questions in a chronological sequence as to the care and treatment the plaintiff received, but can also be done effectively by using a reverse approach. In the latter case, ask the medical expert to list all medical possibilities that could have contributed to the plaintiff's injury, and then systematically, one by one, ask what signs and symptoms or other evidence appears from the medical records that establish each of those possibilities. By process of elimination, you can work your way back to the deponent's agreeing that substandard care was one of the possible reasons for the injury which is the subject of the plaintiff's claim.

5. Key Question: Do you want to depose the defendant's experts? The great danger is that the defendant may then introduce the deposition as part of his case at mediation or trial as he is permitted to do by Fla.R.Civ.P. 1.330(a)(3)(F).

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